The default or miscarriage of another person to which the statute applies need not, however, be a default or miscarriage in payment of a debt or in performing a contract. Any duty imposed by the law, although not the performance of a contract, against the breach of which it was the intention of the parties to secure and be secured, must be proved by writing. Thus, where one had improperly ridden another's horse, and thereby caused its death, a promise by a third person to pay a sum of money in consideration that the owner of the horse would not sue the wrongdoer was adjudged to be unavailable, because in parol only 0).
In the case of Eastwood v. Kenyon (t), the Court of Queen's Bench decided a completely new point on the construction of this branch of the 4th section. They held that the promise, which is to be reduced into writing, is a promise made to the person to whom the original debtor is liable; but that a promise made to the debtor himself, or even to a third person, to answer to the creditor, would not require to be reduced into writing (u). In that case, the plaintiff was liable to a Mr. Blackburne on a promissory note, and the defendant promised the plaintiff to discharge the note to Blackburne. The Court held, that this was not a promise to answer for the debt of another within the meaning of the 4th section of the Statute of Frauds.1
(r) Couturier v. Hastie, 9 Exch. 102; 22 L. J. (Exch.) 97, S. c.
(s) Kirkham v. Martyr, 2 B. & A. 613.
(t) 11 A. & E. (39 E. C. L. R.) 438.
(u) Hargreaves v. Parsons, 13 M. & W. 561; see Header v. Kingham, 13 C. B. N. S. (106 E. C. L. R.) 344; 32 L. J. (C. P.) 108; Wildes v. Dudlow, L. R. 19 Eq. 198; 44 L.J. (Ch.) 341.
"If," said Lord Denman, "the promise had been made to Blackburne, doubtless the statute would have applied; it would have then been strictly a promise to answer for the debt of another; and the argument on the part of the defendant is, that it is not less the debt of another because the promise is made to that other, viz., the debtor and not the creditor, the statute not having in terms stated to whom the promise contemplated by it is to be made. But upon consideration, we are of opinion, that the statute applies only to promises made to the person to whom another is answerable. We are not aware of any case in which the point has arisen, *or in which any attempt has been made to put that construction upon the statute which is now sought to be established, and which we think not to be the true one."
1 "The statute applies only," said Parke, B., in the recent case of Hargreaves v. Parsons, 13 M. & \V. 569, "to promises made to the persons to whom another is already, or is to become answerable It must be a promise to be answerable for a debt of, or a default in some duty by that other person towards the promisee. This was decided, and no doubt rightly, by the Court of Queen'8 Bench, Eastwood v. Kenyon;" and the same point had been previously decided by the Supreme Court of New York, in Johnson v. Gilbert, 4 Hill, 17S.-R.
A promise made to a debtor to pay his debt to a third person is not within the statute: Goetz v. Foos, 14 Minn. 265; Britton v. Angier, 48 N. H. 420; Brown v. Brown, 47 Mo. 130; Barker v. Bradley, 42 N. Y. 3:6; Tibbetts v. Flanders, 18 N. II. 284. When one agrees to pay for lumber to be furnished to another, this is an original promise: Weyand v. Crichfield, 3 Grant, 113; Backus v. Clark, 1 Kan. 303. A parol promise to pay the debt of another is binding, where the promiser holds in his hands funds, securities, or property of the debtor: Fullam v. Adams, 37 Vt. 391; Berry v. Doremus, 30 N. J. 399; Clymer v. De Young, 54 Pa. St. 118; Jennings v. Crider, 2 Bush, 322; Wilson v. Bevans, 58 111. 233. When a third person has a lien on property for the payment of his debt, and he gives up his lien to a person who has an interest in the property, upon his promise to pay the debt, such promise is not within the statute: Luark v. Malone, 34 Ind. 444; Hedges v. Strong, 3 Or. 18; Lud-wick v. Watson, lb. 256; Davis v. Banks, 45 Ga. 138. A promise by A. to B. in consideration of property delivered to him by B., is, in its relation to the creditors so to be paid, within the Statute of Frauds: Clapp v. Lawton, 31 Conn. 95.-s.
It may be observed here that formerly in determining whether a guaranty had been sufficiently reduced to writing to satisfy the 4th section, the question which most frequently arose was whether the consideration did or did not sufficiently appear upon the written instrument. But now, in the case of promises to answer for the debt, default, or miscarriage of another person, it is no longer necessary that the consideration should appear upon the face of the written memorandum. By the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 3, no special promise to be made by any person after the passing of this Act (29th July, 1856) to answer for the debt, default, or miscarriage of another person, being in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document (x).1
(z) Glover v. Hackett, 26 L. J. (Ex.) 416; 2H.&N. 487.
1 [Note by Mr. J. C. Symons.] In Kennaway v. Treleaven the guarantee was thus worded : " Gentlemen, I hereby guarantee to you the sum of £250, in case Mr. P. should default in his capacity of agent and traveller to you." It was held that the future employment of Mr. P. was the consideration of this promise, and that it sufficiently appeared by inference from the terms of the guarantee. But the case of Haigh v. Brooks, 10 A. & E. (37 E. C. L. R.) 309, is the strongest on this point, and has carried the latitude of inference to its extreme length : it was cited in the recent case of Chapman v. Sutton, 15 L. J. C. P. 166; and the guarantee was thus worded: "In consideration of your being in advance to Messrs. John Lees & Co. in the sum of £10,000, for the